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NOT DESIGNATED FOR PUBLICATION

No. 124,606

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JUDITH L. WELLS,

Appellant,

v.

KANSAS CORPORATION COMMISSION,

Appellee.

MEMORANDUM OPINION

Appeal from Shawnee District Court; THOMAS G. LUEDKE, judge. Opinion filed August 19, 

2022. Affirmed.

Judith L. Wells, appellant pro se. 

Jonathan R. Myers, assistant general counsel and special assistant attorney general, Kansas 

Corporation Commission, for appellee.

Before HILL, P.J., COBLE, J., and PATRICK D. MCANANY, S.J.

PER CURIAM: Judith L. Wells appeals the trial court's dismissal of her amended 

petition for judicial review of a decision by the Kansas Corporation Commission 

(Commission). We find no error in the district court's ruling and affirm.

Prior to the present proceedings, in a case involving a permit application by Cross 

Bar Energy, LLC (Cross Bar), Cross Bar sought a permit for a saltwater injection oil 

well. In deciding the matter, the Commission interpreted the regulatory requirement that a 

person protesting a well application under K.A.R. 82-3-135a and K.A.R. 82-3-135b must 

show a "direct and substantial interest" in the proceeding. In its order (Cross Bar Order), 
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the Commission interpreted this phrase to mean that persons filing protests under K.A.R. 

82-3-135a and K.A.R. 82-3-135b must show that they satisfy Kansas' traditional two-part

test for standing. Under this traditional test, a protester must show a direct and substantial 

interest in the proceeding by demonstrating that (1) the protester suffered a cognizable 

injury and (2) there is a causal connection between the injury and the challenged conduct. 

On April 5, 2018, the Commission ordered that this test for standing shall have 

precedential effect in further proceedings before the Commission in accordance with 

K.S.A. 77-415(b)(2)(A). K.S.A. 77-415(b)(1) deals generally with the requirement that 

state agencies comply with the requirements of the rules and regulations filing act. K.S.A. 

77-415(b)(2)(A)(i) provides:

"(2) Notwithstanding the provisions of this section:

(A) An agency may bind parties, establish policies, and interpret statutes or 

regulations by order in an adjudication under the Kansas administrative procedure act or 

other procedures required by law, except that such order shall not be used as precedent in 

any subsequent adjudication against a person who was not a party to the original 

adjudication unless the order is:

(i) Designated by the agency as precedent."

A few months later, Midstates Energy Operating, LLC (Midstates) applied to the 

Commission for authorization to inject saltwater into several oil wells and to increase the 

injection pressure in all wells covered by Midstates' permit in Douglas County. Wells and 

several other persons protested the application. 

Wells and the other protesters received a form letter from the Commission 

acknowledging receipt of the protests. The letter instructed protesters to advise if a 

hearing is requested. If none is requested, no hearing "will be scheduled and the

application will be handled administratively and your protest will be noted." The letter 

continued:
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"Commission staff has the duty to represent the public in general in

recommending approval or denial of applications for injection or disposal well authority. 

One of the Commission's primary concerns is the protection of our groundwater and 

environment. If no hearing is held on this application, your objection will be taken into 

consideration by our staff in making a recommendation on this application. All of our 

staff geologists and technicians have qualified as expert witnesses and are sensitive to the 

concerns expressed by you and the citizens of our State."

Wells' allegations in her protest document included the following assertions:

"b. 'Four injection wells on the lease with allowable injection rates of 146,000 

barrels at 500 psi every year for the life of the wells unless revoked by the Commission 

for good cause seems excessive. Ground water run off abounds in this area which drains 

directly into the Wakarusa River tributaries. Neighboring leases are for 40 barrels a day 

at lower pressures.'

"c. 'The applicant needs to be forthcoming as to the source of all this wastewater 

requested by the applications.'

"d. 'Much investigation needs to occur to determine the impact to the 

environment of more injections with little production to show for it in a limited area on 

top of the over pressurization that has gone on around the Thrasher lease.'

"e. 'Failure to require operators to remediate wells they assumed when they 

assumed a lease allows an operator to run the existing producing wells without following 

Commission regulations for abandoned EOR's they transferred with the lease. This 

practice does not protect the usable water of the state from actual or potential pollution 

from any well, as required by K.S.A. 55-152(a).'" 

Wells did not disclose to the Commission in her protest document that while she 

lived in Mission Hills, Johnson County, she owned 160 acres near the proposed saltwater 

injection well in Douglas County.
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Midstates moved to dismiss the protests of Wells and the others. The Commission 

granted Midstates' motion. The Commission held that one protesting the granting of an 

application such as Midstates' application must have a valid interest in the application. 

Citing K.A.R. 82-3-135b(a), the Commission stated:

"[T]he protest must 'include a clear and concise statement of the direct and substantial

interest of the protester in the proceeding, including specific allegations as to the manner 

in which the grant of the application will cause waste, violate correlative rights, or pollute 

the water resources of the state of Kansas.'"

Referring to the allegations set forth above, the Commission found that Wells does 

not allege "that she herself personally suffers some actual or threatened injury separate

from a grievance that would be common to all members of the public." Thus, Wells failed 

to satisfy the first element of the Cross Bar test for standing—that the protester suffered a 

cognizable injury. Accordingly, the Commission dismissed Wells' protest for lack of 

standing. 

Wells petitioned for judicial review, arguing in her petition that the Commission in 

the Cross Bar matter misapplied the law in adopting the Cross Bar test for standing. The 

Commission moved to dismiss on the grounds that Wells (1) lacked standing to file her 

protest with the Commission and (2) she lacked standing to petition the district court for 

judicial review. 

The district court granted Wells leave to file an amended petition to add 

allegations on the issue of her standing to petition the court for judicial review. Wells did 

so. Ruling on Midstates' motion, the district court held that Wells had standing for 

judicial review of the agency action in dismissing her protest of the saltwater injection 

permit. But the court also held that Wells failed to establish that the Commission's 

adoption of the Kansas traditional two-part standing test (1) usurped judicial powers or 
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(2) unlawfully restricted Wells' constitutional right to petition the government for

grievances.

Wells appeals.

Wells Had Standing in the District Court for Judicial Review 

As a preliminary matter, the district court held that Wells had standing for judicial 

review of the Commission's action in dismissing her protest of the saltwater injection 

permit. The Commission claims this was error, but the Commission did not cross-appeal 

this decision. Normally, K.S.A. 2021 Supp. 60-2103(h) requires an appellee to file a 

notice of cross-appeal from adverse rulings to preserve those issues for appellate review. 

See Lumry v. State, 305 Kan. 545, 553-54, 385 P.3d 479 (2016). But standing is a

component of subject matter jurisdiction and, as a result, it can be raised at any time, 

including for the first time on appeal. Baker v. Hayden, 313 Kan. 667, 673, 490 P.3d 

1164 (2021). Accordingly, we will address this issue. 

The Commission claims that Wells failed to allege facts that would give her 

standing to seek judicial review. But Wells asserted that the Commission dismissed her 

from participating in the hearings on Midstates' application for a saltwater injection well, 

which the district court determined was based on her lack of standing. The dismissal of 

Wells' protest for lack of standing was a cognizable injury caused by the agency action. 

This was not Wells' first rodeo. Wells protested a 2018 permit application by Unit 

Petroleum Company (UPC) for an enhanced oil recovery well in Reno County. Wells v. 

Kansas Corp. Comm'n, No. 122,575, 2021 WL 137417 (Kan. App.) (unpublished

opinion), rev. denied 314 Kan. 859 (2021). One of Wells' claims was that the 

Commission did not have the authority to adopt K.A.R. 82-3-135b(a), which requires 

one protesting a well application to show a "direct and substantial interest" in the 
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proceeding. The operator moved to dismiss Wells' protest for lack of standing to 

participate in the Commission's proceedings. The Commission agreed. Wells petitioned 

for judicial review, arguing that the Commission did not have authority to adopt the 

regulations it relied on in dismissing her protest. 

On judicial review, Wells argued before the district court that she was entitled to 

judicial review because she had standing under K.S.A. 77-611—the statute that deals 

with standing to obtain judicial review of agency actions. Rather than dismissing Wells'

action for judicial review, the district court heard the matter on the merits and ultimately 

denied relief. On appeal, this court noted: "The Commission's staff, in its answer to 

Wells' petition for judicial review, admitted Wells had standing if she was challenging 

the dismissal of her protest because the dismissal was specifically directed towards 

Wells." Wells, 2021 WL 137417, at *3. On appeal to this court, the Commission did not 

reverse its position on Wells' standing before the district court. 

In our present case, Wells is in the same position before the Commission with 

respect to the issue of standing. The dismissal of her protest in the Midstates' proceedings

was based on the Commission's determination that she was subject to—but unable to 

satisfy—the Cross Bar test for standing. The Cross Bar test for standing is one step 

removed from the "direct and substantial interest" provision of K.A.R. 82-3-135b(a),

which she litigated in the UPC well application case. Wells had standing to seek judicial 

review of her dismissal from the Commission's proceedings in this matter.

Wells' Claims

Wells claimed that the district court erred (1) in its analysis of her claims by 

misapplying caselaw and statutes and by considering Midstates' motion to dismiss based 

only on the allegations in her amended petition; (2) in finding that the Commission had 

the authority to interpret K.A.R. 82-3-135b; (3) in finding that the Commission did not 
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violate the separation of powers doctrine by adopting the Cross Bar test for standing—

the Kansas traditional two-part test for standing, which is reserved for the judicial branch;

and (4) in finding that the Commission's Cross Bar test violated her constitutional right to 

petition the government.

ANALYSIS

Wells' Claims that the District Court Erred in Its Analysis of Various Cases and Statutes

Are Not Before Us

Wells' appellate brief contains numerous critiques of the district court's analysis of 

the issue of her standing before the Commission. But in our appellate review, we treat 

Wells' appeal as having bypassed the district court and having been made directly to us. 

See Board of Cherokee County Comm'rs v. Kansas Racing & Gaming Comm'n, 306 Kan. 

298, 318, 393 P.3d 601 (2017). As stated in Johnson v. Kansas Employment Security Bd. 

of Review, 50 Kan. App. 2d 606, 610, 330 P.3d 1128 (2014): "An appellate court 

exercises the same statutorily-limited review of the agency's action as the district court, 

as though the appeal had been made directly to the appellate court." Thus, the correctness 

of the Commission's ruling on Midstates' motion to dismiss—not the correctness of the 

district court's analysis—is the issue before us. 

Under K.S.A. 77-621(a)(1) of the KJRA, "The burden of proving the invalidity of 

agency action is on the party asserting invalidity." K.S.A. 77-621(c) sets forth the 

grounds for relief for one challenging the agency's action. The possible grounds for relief 

based on the claims made in Wells' appeal are as follows: 

• The agency action, or the statute or rule and regulation on which the agency

action is based, is unconstitutional on its face or as applied;
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• The agency has acted beyond the jurisdiction conferred by any provision of 

law; or

• The agency has erroneously interpreted or applied the law.

K.S.A 77-621 (c)(1), (2), and (4).

All of Wells' claims raise issues of law over which we have de novo review. 

Midstates' motion turns on the issue of standing. Whether a protester had standing before 

the Commission is a question of law over which our review is unlimited. League of 

Women Voters of Kansas v. Schwab, 62 Kan. App. 2d 310, 317, 2022 WL 2184823, at *4 

(Kan. App. 2022) ("[S]tanding, like other jurisdictional issues, is a question of law 

subject to unlimited review."). And that issue is resolved by determining whether the 

Commission had the authority to enact the challenged Cross Bar standing test; whether 

the Cross Bar standing test usurps or infringes on the judicial power of our courts or 

violates the separation of powers doctrine; or whether this standing test violates Wells'

constitutional right to petition the government for redress of grievances. Finally, review 

of a ruling on a motion to dismiss is always an issue of law which requires us to consider 

the motion anew. Williams v. C-U-Out Bail Bonds, LLC, 310 Kan. 775, 784, 450 P.3d 

330 (2019). Thus, while we certainly look to the district court's analysis of Wells' claims

which may be helpful and instructive to us, we ultimately have the obligation to

undertake our own analysis to determine whether the Commission erred in granting 

Midstates' motion to dismiss.

The Commission Had Authority to Interpret K.A.R. 82-3-135b 

Wells claims that the Commission exceeded its authority in interpreting K.A.R. 

82-3-135b. Under K.S.A. 77-415(b)(2)(A), an administrative agency—such as the 

Commission—may interpret its own regulations. This is clear statutory authority for the 

Commission to interpret K.A.R. 82-3-135b. We find no support for the claim that the 

Commission exceeded its authority in interpreting K.A.R. 82-3-135b.
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To expand on our conclusion, K.S.A. 74-623 grants the Commission exclusive 

jurisdiction and authority to regulate oil and gas activities in Kansas. As part of its 

regulation of these activities, the Legislature has enacted the following statutory 

mandates for the Commission:

• K.S.A. 2021 Supp. 55-152(a) requires the Commission to "adopt such rules and 

regulations necessary for the implementation of this act including provisions for the 

construction, operation and abandonment of any well and the protection of the 

usable water of this state from any actual or potential pollution from any well."

• K.S.A. 55-704 requires the Commission to promulgate rules and regulations for the 

prevention of waste. 

• K.S.A. 2021 Supp. 55-901 directs the Commission to adopt rules and regulations as 

may be just and equitable to oversee oil or gas wells producing salt water.

These statutes mandate that the Commission adopt its own rules and regulations in 

order to carry out its authority to regulate oil and gas activities in Kansas, including the 

activities associated with Midstate's proposed saltwater injection wells. With respect to 

injection wells, the Commission established the following regulations:

• Under K.A.R. 82-3-400(a), injection wells are permitted only if the following 

conditions are met: 

"(1) The operator has filed an application for injection authority with the 

conservation division in accordance with K.A.R. 82-3-401 and provided notice in 

accordance with K.A.R. 82-3-402. 
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"(2) The conservation division has issued a written permit granting the 

application." 

• K.A.R. 82-3-401(a) lists the information an operator must provide to the 

conservation division on an injection well application. 

• K.A.R. 82-3-403(c) states the factors that the conservation division must consider 

when issuing a permit authorizing injection including, for example, "determinations 

shall be made that [well sites] are separated from fresh and usable water formations 

by impervious beds to give adequate protection to the fresh and usable water 

formations."

• K.A.R. 82-3-402 establishes notice requirements for the application, including the 

requirements of publication in the official county newspaper and notifying parties 

whose acreage lies within a one-half mile radius of the project's boundaries.

• K.A.R. 82-3-402(c) permits objections to well applications, referencing the notice 

provisions of K.A.R. 82-3-135a(c) and the complaint or objection requirements of 

K.A.R. 82-3-135b. 

• K.A.R. 82-3-135a requires those applying for oil well permits to give notice as 

follows:

"(c) Environmental matters. Each applicant for an order or permit filed pursuant 

to K.A.R. 82-3-400 through 82-3-412 and K.A.R. 82-3-600 through 82-3-607 shall give 

notice of the application on or before the date the application is filed with the 

conservation division by mailing or delivering a copy of the application to the following:

(1) Each operator or lessee of record within a one-half mile radius of the well or 

of the subject acreage;
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(2) each owner of record of the minerals in unleased acreage within a one-half 

mile radius of the well or of the subject acreage; and

(3) the landowner on whose land the well affected by the application is located.

"(d) Publication of notice. Notice of the application shall be published in at least 

one issue of the official county newspaper of each county in which the lands affected by 

the application are located."

• K.A.R. 82-3-135a(e) provides a window for filing protests:

"(e) Protests. Once notice of the application is published pursuant to subsection 

(d), the application shall be held in abeyance for 15 days for production matters and 30 

days for environmental matters, pending the filing of any protest pursuant to K.A.R. 82-

3-135b. If a valid protest is filed or if the commission, on its own motion, deems that 

there should be a hearing on the application, a hearing shall be held. The applicant shall 

publish notice of the hearing pursuant to K.A.R. 82-3-135."

• K.A.R. 82-3-135b establishes who may protest:

"(a) A protest may be filed by any person having a valid interest in the 

application. Each protest shall be submitted in writing and shall provide the name and 

address of the protester and the title and docket number of the proceeding. The protest 

shall include a clear and concise statement of the direct and substantial interest of the 

protester in the proceeding, including specific allegations as to the manner in which the 

grant of the application will cause waste, violate correlative rights, or pollute the water 

resources of the state of Kansas."

Once the Commission has adopted a regulation requiring a protester to show a 

"direct and substantial interest" in the proceeding, the Commission is entitled to interpret 

its own regulation in order to determine who has a direct and substantial interest in the 

Commission's proceedings and who does not. See K.S.A. 77-415(b)(2)(A)(i). That is 

what the Commission did in adopting the Cross Bar test for standing. The Commission

had authority to interpret K.A.R. 82-3-135b.
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The Commission's Cross Bar Test for Standing Incorporated Into K.A.R. 82-3-135b Does 

Not Usurp or Infringe Upon Judicial Power or Violate the Separation of Powers 

Doctrine

In the proceedings before the district court, Wells requested a "partial review of

the Crossbar Precedential Order . . . limited to the adoption of the Kansas traditional test 

for standing." Her contentions included the claims the Cross Bar test for standing usurps

judicial power and violates the separation of powers doctrine. The district court stated:

"A usurpation of power would exist if there was found to be significant

interference by one branch of government in the powers of another branch. State v. 

Beard, 274 Kan. 181, 186, 49 P.3d 492 (2002). However, the Petitioner provides no 

authority for the argument that the Commission's use of the components of traditional 

standing in any way improperly infringe on the judicial function."

We agree. Wells spends considerable time expounding on the fact that under our 

Kansas Constitution, judicial power is vested in our court system, which under our 

Constitution is declared to consist of our Supreme Court, the district courts, and such 

other courts as provided by law. Those other courts are the Kansas Court of Appeals, 

created by the Legislature, and the various municipal courts created by our municipalities 

and charged with applying and enforcing municipal ordinances. Our Kansas courts do not 

include the multitude of administrative agencies created by the Legislature to carry out 

specific legislative mandates. Wells contends that when the Commission—one such 

agency created by the Legislature to carry out a specific delegated regulatory function—

adopts a correlative rule or standard to be used by our court system (here, a test for 

standing), that rule or standard somehow infringes upon the power of our courts to 

function. Wells cites no case in support of this notion. Nor do we find, in the history of 

the decisions of our appellate courts, any case involving the Commission, or any other 

administrative agency created by our Legislature, that says so with respect to the issue of 

standing or any other rule adopted by an administrative agency for the orderly 

administration of its regulatory function. 
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We agree with Wells' observation that administrative agencies are distinct from 

the judiciary. But we have read and repeatedly reread Wells' appellate brief on this point 

and are at a total loss in discerning anything approaching a cogent argument to support 

her claim of usurpation of power that is supported by either statutory or caselaw. As the 

district court aptly explained, citing Kansas-Nebraska Natural Gas Co. v. State 

Corporation Commission, 205 Kan. 838, 846, 473 P.2d 27 (1970):

"The Commission is free to clarify its standing requirement under the 

administrative regulations as long as it does not expand or contract its jurisdiction under 

the statute. The purpose of a standing requirement is to reserve participation in the 

process to persons who have suffered, or will actually suffer, the direct consequences of 

the administrative action. This purpose was defined in Kansas-Nebraska:

"'[A]ny person or persons who either have a substantial right, a property 

right, or a pecuniary right that would be adversely or injuriously affected, 

or some right other than merely a general interest common to all 

members of the public that would be adversely or injuriously affected as 

a result of the order of the commission [would have standing].' KansasNebraska, 205 Kan. at 846."

Finally, Wells does not challenge in this appeal the authority of the Commission,

under K.A.R. 82-3-135b, to require protesters to have a "direct and substantial interest" in 

the proceedings. She cites no case that has determined that requiring protesters to show a 

"direct and substantial interest" in proceedings like these is beyond the Commission's 

authority. Her challenge is to the Commission interpretation of "direct and substantial 

interest" to mean that (1) the protester suffered a cognizable injury and (2) there is a 

causal connection between the injury and the challenged conduct. Courts generally defer 

to an agency's interpretation of its own regulations. Tonge v. Werholtz, 279 Kan. 481, 

484, 109 P.3d 1140 (2005).
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Wells does not explain how requiring protesters to show injury and causation is an 

illegal expansion and intrusion into judicial power beyond the requirement in K.A.R. 82-

3-135b that a protester has a "direct and substantial interest" in the proceedings. If one is 

an illegal encroachment on judicial power, we fail to see how the other is not. We find no 

support in legal authority or in logic to support this claim of error.

Wells Has Abandoned Her Claim that the Cross Bar Test for Standing Violates Her

Constitutional Right to Petition the Government

Wells contends that adopting the Kansas traditional test for standing violates her 

constitutional right to petition the government for redress of grievances. Constitutional 

claims may be raised at the agency level, but they are decided by the courts. In re 

Property Valuation Appeals of Various Applicants, 298 Kan. 439, 446-47, 313 P.3d 789 

(2013). Here, we have no record that this constitutional claim was raised below. But she 

is entitled to raise the issue for the first time here in her appellate brief. 

Supreme Court Rule 6.02(a)(4) (2022 Kan. S. Ct. R. at 36) relates to the 

mandatory contents of an appellant's brief and provides it must contain: "A concise but 

complete statement, without argument, of the facts that are material to determining the 

issues to be decided in the appeal." Under Rule 6.02(a)(5), an appellant's "arguments and 

authorities relied on" are to be separately stated by issue. (2022 Kan. S. Ct. R. at 36).

As stated in Mangiaracina v. Gutierrez, 11 Kan. App. 2d 594, 595, 730 P.2d 1109 

(1986): "A pro se litigant in a civil case is required to follow the same rules of procedure 

and evidence which are binding upon a litigant who is represented by counsel." The court 

in Joritz v. University of Kansas, 61 Kan. App. 2d 482, 505 P.3d 775, rev. denied 315

Kan. 968 (2022), considered the same issue facing us today with respect to the adequacy 

of a pro se appellant's brief. There, the court held:
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"[Joritz'] pro se status does not allow her to ignore appellate procedures, including Rule 

6.02(a)(4). Because Rule 6.02(a)(4) explicitly prohibits arguments in fact sections, there 

is no excuse for Joritz' failure to follow this rule. For this reason, we will not consider the 

approximately 10 arguments that Joritz has included in her facts section." 61 Kan. App. 

2d at 500.

We agree with the analysis in Joritz. Accordingly, we ignore any argument that is 

made in Wells' Statement of Facts and turn to the Arguments and Authorities section of 

her brief.

Wells having raised her constitutional claim on appeal is not enough. She must 

argue the merits of her claim to satisfy her burden of proving the unconstitutionality of 

the Cross Bar standard. In short, an issue not briefed, or an issue not adequately briefed, 

is deemed waived or abandoned. In re Marriage of Williams, 307 Kan. 960, 977, 417 

P.3d 1033 (2018); State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018). Moreover, a

point raised incidentally in a brief and not argued therein is also deemed waived or 

abandoned. Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017). 

A close reading of the Arguments and Authorities section of Wells' appellate brief 

discloses the following references to her claim that the Cross Bar Order interferes with 

her constitutional right to petition the government:

• Wells states that the Cross Bar Order is a jurisdictional barrier that violates Article 

3 of the Kansas Constitution Bill of Rights.

• She states that she is not a litigant but simply someone trying to "petition her

government."

• She states that she claimed before the district court that the Cross Bar Order 

violated her rights "under Section Three of the Kansas Bill of Rights." So the 

district court ordered more briefing on that issue.
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• She states that the district court's final decision identified Wells' right to petition 

the government as one of two issues.

• She states that K.S.A. 2021 Supp. 60-5320(b) encourages and safeguards the right 

to "petition . . . in connection with a public issue," which the Cross Bar

requirement restricts.

• She cites a portion of the Commission's motion to dismiss in which the 

Commission argues that the Cross Bar Order does not violate the right to petition

the government.

Wells cites K.S.A. 2021 Supp. 60-5320(b) for its statement of the purpose of the 

Public Speech Protection Act. But she does not explain how she comes under the 

provisions of the Act, how the Act supports her claim, or how the Cross Bar Order is a 

per se violation of her constitutional right to petition her government or an 

unconstitutional infringement of that right as applied to her. We need not consider this 

claim because Wells provides no arguments for us to evaluate; she merely repeatedly 

restates her claim that that the Cross Bar Order violates her right to petition the 

government. This claim has been abandoned. See In re Marriage of Williams, 307 Kan. at

977.

Wells has failed to carry her burden of establishing that the Commission erred in 

dismissing her protest for lack of standing.

Affirmed.